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One need not actually be driving a car to incur DUI type penalties. Physical Control, a less frequent charge, carries the same penalties as DUI, with the most notable two differences between the two of driving and the defense.

Driving under the influence (DUI) is a gross misdemeanor, and upon conviction for DUI or Physical Control, there are mandatory punishment penalties the court must impose, even for first-time offenders with no prior DUI convictions. While the court always retains the ability to impose more than the minimum, if you are convicted of DUI, the court has no discretion for sentencing below the mandatory punishment set forth by the statute.

As a gross misdemeanor, the maximum punishment for DUI is one year in jail and a $5,000.00 fine.

There is also a large overlap between what the court orders and what the Department of Licensing (DoL) will require of you upon a conviction, and the consequences depend on what sort of prior DUI convictions you have, with seven (7) years being the magic number.

Prior DUI or Physical Control Offense Defined

Under the sentencing scheme of Washington's DUI law, the mandatory minimums are determined by whether you have "priors" within seven years. The word "prior" is set by statute.

Deferred Prosecution Still Counts as a Prior

Many people who enter a Deferred Prosecution and successfully complete the program are unaware that this falls within the definition of prior offense as well. In addition to the priors above, the statute includes a Deferred Prosecution if done when the charge is originally filed as DUI or Physical Control, and even if a Deferred was for Negligent Driving.

In exercising its discretion in setting penalties within the mandatory minimums and maximum limits allowed, the court is required to "particularly consider" whether the person's driving at the time of the offense was responsible for injury or damage to another or another's property, and whether at the time of the offense the person was driving or in physical control of a vehicle with one or more passengers. As stated earlier, even though there may be no statutory reason for a judge to sentence above the mandatory minimums, they retain the discretion to impose more than the minimum and up to the maximum of one year and a $5000.00 fine.

Minimum DUI / Physical Control Penalties

No Priors and Breath Test Under .15

If you have no prior DUI related convictions and a breath test under 0.15, the Court must and will:

Impose 24 consecutive hours of jail;

Impose a fine and fees of $941.00;*

Order the DoL to suspend your driver's license for 90 days (if you suffered an administrative suspension from DoL prior to the conviction, you will be credited time) and when that period of time is over the DoL will only reinstate your driver's license if you install an Ignition Interlock Device and maintain it for one year, and have at least the last four months of the twelve months with no failed tests;

Require you undergo a drug and alcohol evaluation and comply with any and all treatment recommendations;

Order you to attend a DUI victim impact panel; and

Place you on probation for at least two years, but most likely five years.

*Fines and fees change quickly over time and those described herein may be less than those actually imposed.

No Priors and Breath Test Over .15 (or Refusal)

If you have no prior DUI related convictions and a breath test over 0.15 (or you refused), the Court must and will:

Impose 48 consecutive hours jail;

Impose a fine and fees of $1,196.00;

Order the DoL to revoke your driver's license for 365 days, or two years if you refused, (if you suffered an administrative suspension from DoL prior to the conviction, you will be credited time) and when that period of time is over the DoL will only reinstate your driver's license if you apply install an Ignition Interlock Device and maintain it for one year, and have at least the last four months of the twelve months with no failed tests;

Require you undergo a drug and alcohol evaluation and comply with any and all treatment recommendations;

Order you to attend a DUI victim impact panel; and

Place you on probation for at least two years, but most likely five years. The cost of probation is at your expense.

One Prior and Breath Test Under .15

If you have one prior DUI related conviction and a breath test under 0.15, the Court must and will:

Impose 30 days jail followed by 60 days of Electronic Home Monitoring —at your expense — after the jail is served (this EHM time may be converted to jail on a 15:1 ratio);

Impose a fine and fees of $1,196.00;

Order the DoL to revoke your driver's license for two years (if you suffered an administrative suspension from DoL prior to the conviction, you will be credited time) and when that period of time is over the DoL will only reinstate your driver's license if you install an Ignition Interlock Device and maintain it for at least one year, and have at least the last four months of the twelve months with no failed tests. If you have been previously ordered to install an IID, then it will be required for five years;

Require you undergo a drug and alcohol evaluation and comply with any and all treatment recommendations;

Place you on probation at your expense for at five years.

One Prior and Breath Test Above .15 (or Refusal)

If you have one prior DUI related conviction and a breath test over 0.15 (or you refused), the Court must and will:

Impose 45 days jail followed by 90 days of Electronic Home Monitoring, at your expense, after the jail is served (EHM may be converted at a 15:1 ratio to jail time);

Impose a fine and fees of $1,546.00;

Order the DoL to revoke your driver's license for 900 days, OR three years if you refused, (if you suffered an administrative suspension from DOL prior to the conviction, you will be credited time) and when that period of time is over the DoL will only reinstate your driver's license if you install an Ignition Interlock Device and maintain it for at least one year, and have at least the last four months of the twelve months with no failed tests. If you have been previously ordered to install an IID, then it will be required for five years;

Require you undergo a drug and alcohol evaluation and comply with any and all treatment recommendations;

Place you on probation at your expense for at five years.

Two Priors and Breath Test Under .15

If you have 2 prior DUI related convictions and a breath test under 0.15, the Court must and will:

Impose 90 days jail followed by 120 days of Electronic Home Monitoring — at your expense — after the jail is served (EHM may be converted at a 15:1 ratio to jail time);

Impose a fine and fees of $1,970.00;

Order the DoL to revoke your driver's license for three (3) years (if you suffered an administrative suspension from DoL prior to the conviction, you will be credited time) and when that period of time is over the DoL will only reinstate your driver's license if you install an Ignition Interlock Device and maintain it for at least one year, and have at least the last four months of the twelve months with no failed tests. If you have been previously ordered to install an IID, then it will be required for minimum five (5) years, but for as long as ten years;

Require you undergo a drug and alcohol evaluation and comply with any and all treatment recommendations;

Place you on probation at your expense for at five years.

Two Priors and Breath Test Above .15 (or Refusal)

If you have two prior DUI related conviction and a breath test over 0.15 (or you refused), the Court must and will:

Impose 120 days jail followed by 150 days of Electronic Home Monitoring — at your expense — after the jail is served (EHM may be converted at a 15:1 ratio to jail time);

Impose a fine and fees of $2,821.00;

Order the DoL to revoke your driver's license for four (4) years, regardless of whether you refused, (if you suffered an administrative suspension from DoL prior to the conviction, you will be credited time) and when that period of time is over the DoL will only reinstate your driver's license if you install an Ignition Interlock Device and maintain it for at least one year, and have at least the last four months of the twelve months with no failed tests. If you have been previously ordered to install an IID, then it will be required for minimum five years, but for as long as ten years;

Require you undergo a drug and alcohol evaluation and comply with any and all treatment recommendations;

Place you on probation at your expense for at five years.

Additional DUI / Physical Control Sentence Terms & Punishment

In addition to the strict and specific terms outlined as a punishment for DUI, the court will order compliance with other conditions. In the event that those special terms or conditions are violated, there is additional mandatory punishment. The DUI Mandatory Sentence will require the court to impose the following additional conditions of sentence or probation:

Not drive a motor vehicle without a valid license to drive, and proof of financial responsibility;

Not drive a motor vehicle while having an alcohol concentration of .08 or more within two hours after driving; and

Not refuse a test of breath or blood to determine alcohol concentration upon lawful request of a law enforcement officer.

For each and any violation of these three mandatory probation conditions, the court shall order the convicted person to be confined for 30 days, which shall not be suspended or deferred.

This means if you are on probation for a DUI and are convicted of a new DUI where you were caught driving without a valid license, but provide a breath sample in the field, and then refuse at the station, you would be required to serve an additional 90 days in jail on top of whatever your sentence is for the new DUI conviction.

For each and every incident involving a violation of a mandatory condition of probation imposed, your license will be suspended or revoked by the court for 30 days and if it is already suspended or revoked at the time the of the probation violation, it shall be extended by 30 days. Under the above scenario, this means that there would be an additional 90 days added to your current suspension or revocation.

Special Penalties for Having Passengers Under 16 Years Old

If you are convicted of a violation of DUI or Physical Control and there is evidence that there was a passenger under the age of sixteen in the vehicle, the court shall order a minimum fine of $1,000.00 for first offense, $2,000.00 for a second offense, and $3,000.00 for a third offense, AND the use of an Ignition Interlock Device (IID) for at least six months beyond the mandatory times set forth above regardless of number of priors.

However, prior to a conviction, upon being merely arrested for DUI with a child under age 16 in the vehicle, the statute requires that:

In every case where a person is arrested for a violation of DUI (RCW 46.61.502) or Physical Control (RCW 46.61.504), the law enforcement officer shall make a clear notation if a child under the age of sixteen was present in the vehicle. Furthermore, a law enforcement officer shall promptly notify child protective services whenever a child is present in a vehicle being driven by his or her parent, guardian, legal custodian, or sibling or half-sibling and that person is being arrested for a drug or alcohol-related driving offense.

The law does not require law enforcement to take custody of the child unless there is no other responsible person, or an agency having the right to physical custody of the child that can be contacted, or the officer has reasonable grounds to believe the child should be taken into custody.

A DUI arrest is scary enough, but if a child is in the car at the time of arrest, a routine DUI arrest becomes a parental nightmare.

Department of Licensing Overlap

If the DoL suspends or revokes your license before a court conviction for the same facts that created the charge and the DoL action, the department shall grant credit on a day-for-day basis for any portion of a suspension, revocation, or denial already served. Furthermore, the DoL will require an Ignition Interlock Device (IID) for six months beyond the mandatory time upon conviction when a passenger under 16 is the vehicle.

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